Citation Nr: 1332964 Decision Date: 10/22/13 Archive Date: 10/24/13 DOCKET NO. 13-01 293 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for flat feet (pes planus). 2. Entitlement to service connection for headaches. 3. Entitlement to service connection for a cyst/tumor/growth on the head and neck. 4. Entitlement to service connection for a respiratory disorder (claimed as trouble breathing, constant chest congestion, and coughing). ATTORNEY FOR THE BOARD A. Dean, Associate Counsel INTRODUCTION The Veteran had active military service from March 1976 to February 1980. This appeal to the Board of Veterans' Appeals (Board/BVA) is from an April 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). Because they require further development before being decided on appeal, the Board is remanding these claims to the RO via the Appeals Management Center (AMC) in Washington, DC. REMAND While the Board sincerely regrets the additional delay that inevitably will result, these claims must be remanded to ensure they receive all due consideration. With regards to the Veteran's claim for flat feet, the Board sees that the condition was noted when he entered service. The Report of Medical Examination for his enlistment has a notation of mild pes planus (i.e., flat feet), albeit that at the time was asymptomatic. Every Veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of examination, acceptance, and enrollment, or where clear and unmistakable (obvious and manifest) evidence indicates the injury or disease existed before acceptance and enrollment and was not aggravated by such service. See generally 38 U.S.C.A. § 1111 (West 2002). Only such conditions as are recorded in examination reports are considered as "noted." 38 C.F.R. § 3.304(b) (2013). When determining whether a defect, infirmity, or disorder is "noted" at entrance into service, supporting medical evidence is needed. Crowe v. Brown, 7 Vet. App. 238 (1994). If a disorder was not noted as pre-existing when the Veteran entered service, then the presumption of soundness applies and VA has the burden of showing by clear and unmistakable evidence both preexistence and that the disorder was not aggravated during or by his service or that any worsening was not beyond the condition's natural progression. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004) and VAOPGCPREC 3-2003 (July 16, 2003). See also Horn v. Shinseki, 25 Vet. App. 231, 234 (2012). Conversely, if, as here, a condition was noted when entering service, then the presumption of soundness does not apply. The presumption of soundness attaches only where there has been an induction examination during which the disability about which the Veteran later complains was not detected. See Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). In this alternative scenario the Veteran can only claim entitlement to service connection based on aggravation of the disorder. Smith v. Shinseki. 24 Vet. App. 40, 47 (2010); Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). Moreover, he, not VA, has the burden of establishing aggravation by showing there was an increase in the disability during his service. Horn, 25 Vet. App. at 235 n. 6. Independent medical evidence generally is needed to support a finding that the pre-existing disorder increased in severity during service beyond its natural progression. See Paulson v. Brown, 7 Vet. App. 466, 470-471 (1995); Crowe v. Brown, 7 Vet. App. 238, 246 (1994). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306; Falzone v. Brown, 8 Vet. App. 398, 402 (1995). See also Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002); Jensen v. Brown, 4 Vet. App. 304, 306-307 (1993); Green v. Derwinski, 1 Vet. App. 320, 323 (1991); and Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). (all holding that mere temporary or intermittent flare-ups of a pre-existing injury or disease during service are insufficient to be considered "aggravation in service", unless the underlying condition, itself, as contrasted with mere symptoms, has worsened). Also, in Verdon v. Brown, 8 Vet. App. 529 (1996), the Court held that the presumption of aggravation does not attach even where the pre-existing disability has been medically or surgically treated during service and the usual effects of treatment have ameliorated disability so that it is no more disabling than it was at entry into service. Only if the Veteran manages to show a chronic worsening of the condition during his service does the presumption of aggravation apply and, in turn, then require VA to show by clear and unmistakable evidence that the worsening was not beyond the condition's natural progression. The presumption of aggravation applies only when pre-service disability increases in severity during service, regardless of whether the degree of worsening was enough to warrant compensation. Beverly v. Brown, 9 Vet. App. 402, 405 (1996); Browder v. Derwinski, 1 Vet. App. 204, 206-207 (1991). "Clear and unmistakable evidence" is a more formidable evidentiary burden than the preponderance of the evidence standard. See Vanerson v. West, 12 Vet. App. 254, 258 (1999) (noting that the "clear and convincing" burden of proof, while a higher standard than a preponderance of the evidence, is a lower burden to satisfy than that of "clear and unmistakable evidence."). It is an "onerous" evidentiary standard, requiring that the preexistence of a condition and the non-aggravation result be "undebatable." Cotant v. Principi, 17 Vet. App. 116, 131 (2003), citing Laposky v. Brown, 4 Vet. App. 331, 334 (1993). Evidence of a prolonged period without medical complaint can be considered, along with other factors concerning the Veteran's health and medical treatment during and after military service, as evidence of whether a pre-existing condition was aggravated by military service. Maxon v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). A February 8, 2013 Memorandum from a VA Military Records Specialist indicates the Veteran's service treatment records (STRs) for the duration of his active duty service are unavailable. The reports of his entrance and separation examinations are of record, though. The Memorandum explains that the procedures to obtain the files have been followed, that all efforts to obtain the needed evidence have been exhausted, and that further attempts would be futile. See 38 C.F.R. § 3.159(c)(2) and (e)(1). See also Chest v. Peake, 283 Fed. App. 814 (Fed. Cir. 2008); 38 C.F.R. § 3.159(c)(2) (providing that VA will end its efforts to obtain records from a Federal department or agency only if VA concludes the records sought do not exist or that agency advises VA the requested records do not exist or that the custodian does not have them). The law provides that when, through no fault of the Veteran, records under the control of the Government are unavailable, the obligation to explain findings and conclusions and to consider carefully the benefit-of-the-doubt rule is heightened. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992); Dixon v. Derwinski, 3 Vet. App. 261, 263 (1992). To this end, VA must advise the Veteran of his right to support his claim and try and compensate for this missing evidence by submitting alternate sources of evidence, including service medical or personnel statements, or lay evidence such as "buddy" affidavits or statements. Id.; see also 38 C.F.R. § 3.159(e). See, too, Moore v. Derwinski, 1 Vet. App. 401 (1991) (holding that this heightened duty also includes the obligation to search for alternative records, such as by having the Veteran complete and return VA Form 13055 allowing for the search for evidence from the National Archives and Records Administration (NARA) or for extracts or other evidence from the Surgeon General's Office (SGO)). The Board must also point out, however, that the O'Hare precedent does not raise a presumption that the missing medical records, if available for consideration, necessarily would support the claim. That is to say, missing STRs do not lower the threshold for an allowance of a claim; there is no reverse presumption for granting a claim. The legal standard for proving a claim is not lowered; rather, the Board's obligation to discuss and evaluate evidence is heightened. See Russo v. Brown, 9 Vet. App. 46 (1996). The case law does not establish a heightened "benefit of the doubt," only a heightened duty of the Board to consider the applicability of the benefit-of-the-doubt doctrine, to assist the claimant in developing the claim, and to explain its decision when a claimant's medical records have been lost or destroyed. See Ussery v. Brown, 8 Vet. App. 64 (1995). Thus, missing STRs, alone, while indeed unfortunate, do not obviate the need for the Veteran to still have competent and credible evidence supporting his claim for service connection by suggesting a correlation between his claimed condition and his military service - here, in the way of aggravation during his service of a documented pre-existing condition. See Milostan v. Brown, 4 Vet. App. 250, 252 (1993) (citing Moore, 1 Vet. App. at 406 and O'Hare, 1 Vet. App. at 367). In his Notice of Disagreement (NOD), the Veteran alleged that he was treated for his flat feet while in service and resultantly "placed on medical P3 profiles on more than one occasion." Even as a layman, he is competent to report symptoms that he has experienced like painful feet, etc., and equally can attest to factual matters of which he has first-hand knowledge. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). See also Layno v. Brown, 6 Vet. App. 465, 470 (1994); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). Therefore, the Board finds that he is competent to report this having occurred during his service. Additionally, the Board finds him credible in these assertions. So his lay testimony concerning this is probative. Only if evidence is both competent and credible does it ultimately have probative value. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")); Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, whereas credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted). Therefore, the question to be answered is whether his pre-existing pes planus was aggravated by his service - which, again, means chronically or permanently worsened over and beyond its natural progression. Accordingly, a VA examination and opinion are needed to assist in making this important determination. See, e.g., Quirin v. Shinseki, 22 Vet. App. 390, 395 (2009). With regards to the Veteran's claims of entitlement to service connection for headaches and a respiratory disorder, he alleges these disorders are the result of exposure to asbestos while in service. Specifically, in his August 2008 claim he maintained that, as a wheel vehicle mechanic in service, he was exposed to asbestos from disc brakes and the dust they accumulated. In McGinty v. Brown, 4 Vet. App. 428, 432 (1993), the Court observed that there had been no specific statutory guidance with regard to claims for service connection for asbestosis and other asbestos-related diseases, nor had the Secretary of VA promulgated any regulations. However, VA has issued a circular on asbestos-related diseases entitled Department of Veterans Benefits, Veteran's Administration, DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988) (hereinafter "DVB Circular"), which provides some guidelines for considering compensation claims based on exposure to asbestos. The DVB circular was subsumed verbatim as § 7.21 of Adjudication Procedure Manual, M21-1, Part VI. (This has now been reclassified in a revision to the Manual at M21-1MR, Part IV, Subpart ii, Chapter 2, Section C). See also VAOPGCPREC 4-2000 (April 13, 2000). The applicable section of Adjudication Procedure Manual M21-1 notes that inhalation of asbestos fibers can produce fibrosis and tumors. The most common disease is interstitial pulmonary fibrosis (asbestosis). Asbestos fibers may produce pleural effusions and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, lung cancer, and cancers of the gastrointestinal tract. Cancers of the larynx and pharynx as well as the urogenital system (except the prostate) are also associated with asbestos exposure. See Adjudication Procedure Manual, M21-1, Part IV, 7.21(a)(1). Some of the major occupations involving exposure to asbestos include mining; milling; work in shipyards; insulation work; demolition of old buildings; carpentry and construction; and manufacture and installation of roofing and flooring materials, asbestos cement sheet and pipe products, military equipment, etc. Exposure to any simple type of asbestos is unusual except in mines and mills where the raw materials are produced. See id. at 7.21(b)(1). The latent period for asbestos-related diseases varies from 10 to 45 years or more between first exposure and development of disease. Also of significance is that exposure to asbestos may be brief (as little as a month or two) or indirect (bystander disease). See id. at 7.21(b)(2). Neither the Manual M21-1 nor the DVB Circular creates a presumption of exposure to asbestos solely from a particular occupation. Rather, they are guidelines which serve to inform and educate adjudicators as to the high exposure of asbestos and the prevalence of disease found in particular occupations, and they direct that the raters develop the record, ascertain whether there is evidence of exposure before, during, or after service, and determine whether the disease is related to the putative exposure. See Dyment v. West, 13 Vet. App. 141, 146 (1999); see also Nolen v. West, 12 Vet. App. 347 (1999); VAOPGCPREC 4-2000. Here, a preliminary review of the record shows the Veteran was never sent the appropriate Veterans Claims Assistance Act (VCAA) notice regarding these claims that are predicated on asbestos exposure, and the RO has not performed the necessasry development of these claims, either. For these type claims, VA must determine whether military records demonstrate evidence of asbestos exposure during service, determine whether there was pre-service and/or post-service occupational or other asbestos exposure, and determine whether there is a relationship between asbestos exposure in service (as opposed to before or after) and the claimed disabilities. M21-1MR, Part IV, Subpart ii, Chapter 1, Section H, Topic 29; DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988). Thus, while partial service personnel records (SPRs) appear to be on file, the RO/AMC must attempt to obtain the Veteran's entire SPRs and determine whether there is evidence of asbestos exposure during his service. He also must be provided all required notice concerning this determination. As well, if there is suggestion of asbestos exposure during his service, the RO/AMC must then schedule a VA examination for a medical nexus opinion concerning whether his claimed headaches and respiratory disorder are a result or consequence of that asbestos exposure during his service. As for his claim of entitlement to service connection for a cyst/tumor/growth on his head and neck, a review of his post-service private treatment records show he has been receiving treatment for various dermatologic conditions of his head and neck since 1987 or thereabouts, including for a growth behind his left ear and for keloids, folliculitis, and pustules on his scalp. In his April 2010 NOD, he asserted that he had received inpatient treatment for removal of a cyst/growth on his neck and head area while stationed at Fort Polk, Louisiana. And, as already explained, he is competent even as a layman to make this declaration since this again is a factual matter of his firsthand knowledge. See Washington, 19 Vet. App.at 368. See also Layno, 6 Vet. App. at 470; Grottveit, 5 Vet. App. at 93. The Board also finds him credible in this regard. He also has at least established he has current disability, seeing as though he has a cyst/tumor/growth on his head and neck for which he has been receiving treatment. In addition, he competently and credibly has stated that he received treatment for a similar growth while in service. Therefore, he should be afforded a VA examination for a medical nexus opinion concerning the nature and etiology of his current cyst/tumor/growth on his head and neck - especially in terms of whether it is related to the cyst/growth that he had and reportedly received treatment for while in service. 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4). See also McLendon v. Nicholson, 20 Vet. App. 79 (2006). In addition, any relevant current treatment records should be obtained and considered. 38 C.F.R. § 3.159(c). Accordingly, these claims are REMANDED for the following additional development and consideration: 1. Send the Veteran a VCAA letter in compliance with DVB Circular and M21-1, Part IV, regarding his alleged exposure to asbestos during his service. 2. Then take appropriate action to develop any evidence of his exposure to asbestos before, during, and after his active military service. Request his SPRs in order to determine whether he was exposed to asbestos while on active duty, as he alleges. A specific determination needs to be made as to whether his military occupational specialty (MOS) placed him in an area of possible exposure to asbestos. If, like most of his STRs, these requested SPRs are unavailable, or the search for them otherwise yields negative results and it is determined that further attempts to obtain these records would be futile, then this must be documented in the claims file and him appropriately notified in accordance with 38 C.F.R. § 3.159(c)(2)-(3) and (e)(1). 3. Undertake appropriate development to obtain all outstanding, pertinent medical treatment records. All additional treatment records identified by the Veteran should be obtained and associated with the claims file for consideration. The amount of efforts needed to be expended depends on who has custody of the records. If they are not in the custody of a Federal department or agency, then 38 C.F.R. § 3.159(c)(1) controls, whereas subpart (c)(2) controls if they are. If these efforts yield negative results, a notation to that effect must be made in the file and the Veteran appropriately notified. 38 C.F.R. § 3.159(e)(1). 4. Next, if it is determined the Veteran was exposed to asbestos in service, schedule a VA compensation examination for a medical nexus opinion concerning the likelihood (very likely, as likely as not, or unlikely) that his claimed headaches and respiratory disorder are a result or consequence of that asbestos exposure in service (versus, if applicable, any asbestos exposure that may have occurred prior to or since his service). The term "as likely as not" means at least 50-percent probability. It does not; however, mean merely within the realm of medical possibility. Rather, it means that the weight of the medical evidence both for and against a conclusion such as causation is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. In making this determination, the examiner should consider the Veteran's lay statements regarding his purported exposure to asbestos during his service. The examination should include any diagnostic testing or evaluation deemed necessary. The claims file, including all relevant information in the Virtual VA electronic claims file, must be made available for review and consideration of the pertinent medical and other history. The examiner must discuss the rationale of the opinion, whether favorable or unfavorable, if necessary citing to specific evidence in the file. 5. Also schedule a VA examination to determine the likelihood (very likely, as likely as not, or unlikely) the Veteran's military service chronically aggravated his pre-existing pes planus, meaning permanently worsened this condition beyond its natural progression. The examination should include any diagnostic testing or evaluation deemed necessary. The claims file, including all relevant information in the Virtual VA electronic claims file, must be made available for review and consideration of the pertinent medical and other history. To reiterate, the term "as likely as not" means at least 50-percent probability. It does not; however, mean merely within the realm of medical possibility. Rather, it means that the weight of the medical evidence both for and against a conclusion such as aggravation is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. It is essential the examiner discuss the underlying medical rationale of the opinion, whether favorable or unfavorable to the claim, if necessary citing to specific evidence in the file supporting it. 6. As well, schedule a VA compensation examination for a medical nexus opinion concerning the nature and etiology of the claimed cyst/tumor/growth on the Veteran's head and neck. The examination should include all diagnostic testing or evaluation deemed necessary. The claims file, including all relevant information in the Virtual VA electronic claims file, must be made available for review and consideration of the pertinent medical and other history. A medical opinion is first needed to clarify all current disability - meaning all existing disability since the filing of this claim. And for each disability presently shown, a medical nexus opinion is needed concerning the likelihood (very likely, as likely as not, or unlikely) it is related or attributable to the Veteran's service or dates back to his service. The term "as likely as not" means at least 50-percent probability. It does not; however, mean merely within the realm of medical possibility. Rather, it means that the weight of the medical evidence both for and against a conclusion such as causation is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. In making this determination, the examiner should consider the Veteran's lay statements of record, including his statement that he had a cyst/growth removed from his head and neck while in service. The examiner must discuss the rationale of the opinion, whether favorable or unfavorable, if necessary citing to specific evidence in the file. 7. Then readjudicate these claims in light of this and all other additional evidence. If these claims continue to be denied, send the Veteran a supplemental statement of the case (SSOC) and give him an opportunity to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of these claims. He has the right to submit additional evidence and argument concerning these claims the Board is remanding. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals